Oral sur­geon ap­peal­ing judg­ment

Mac­In­tyre says ill­ness caused by ren­o­va­tions

Cape Breton Post - - FRONT PAGE - BY CHRIS HAYES chayes@cb­post.com

Dun­can F. Mac­In­tyre ap­peal­ing Supreme Court of Nova Sco­tia judg­ment re­ject­ing his claims that his health was dam­aged by heavy met­als re­leased dur­ing ren­o­va­tions.

SYD­NEY — Oral sur­geon Dun­can F. Mac­In­tyre is ap­peal­ing a Supreme Court of Nova Sco­tia judg­ment re­ject­ing his claims in a law­suit that his health was dam­aged by heavy met­als re­leased in dust dur­ing ren­o­va­tions at a lo­cal hospi­tal.

Filed by Hal­i­fax lawyers Ge­orge W. MacDon­ald and Michelle C. Awad, the ap­peal claims that Supreme Court Jus­tice Dou­glas L. MacLel­lan erred by find­ing that dust was re­leased for a rel­a­tively short pe­riod of time, Mac­In­tyre was ex­posed to it for only about one week, heavy met­als weren’t re­leased into the air at the hospi­tal as a re­sult of the ren­o­va­tions and the oral sur­geon hasn’t suf­fered from heavy metal tox­i­c­ity.

MacLel­lan ruled Mac­In­tyre failed to prove that heavy met­als were re­leased in the dust dur­ing ren­o­va­tions at the New Water­ford Con­sol­i­dated Hospi­tal where he had an of­fice in 2001, and that the heavy met­als were the cause of his med­i­cal con­di­tion.

Mac­In­tyre, a spe­cial­ist in com­pli­cated oral and max­illo­fa­cial surgery, had sued the Cape Bre­ton District Health Au­thor­ity, which owns the hospi­tal.

Dur­ing the Supreme Court law­suit, Mac­In­tyre said he suf­fered feel­ings of weak­ness and dis­ori­en­ta­tion in May 2002 which over time were fol­lowed by headaches, crush­ing pain in his ear, per­sis­tent nau­sea, feel­ings of rage and with­drawal, tired­ness and for­get­ful­ness. He stopped prac­tis­ing in April 2003.

MacDon­ald said in an in­ter­view Mon­day that his client is mak­ing some small im­prove­ments in his med­i­cal con­di­tion but is cer­tainly not able to re­sume his prac­tice.

The Supreme Court jus­tice noted in his rul­ing that there had been an es­ti­mate of the to­tal loss of Mac­In­tyre’s past and fu­ture in­come of $17.5 mil­lion, al­though MacLel­lan dis­agreed with the es­ti­mate.

MacDon­ald ex­pects to be in the Nova Sco­tia Court of Ap­peal on March 24 to set a date for the ap­peal.

The ap­peal also claimed MacLel­lan erred when it came to defin­ing and ap­ply­ing the test that the oral sur­geon had to sat­isfy to prove the health au­thor­ity caused his in­juries and dam­ages. The Supreme Court jus­tice also failed to deal with Mac­In­tyre’s claim that the health au­thor­ity breached its leas­ing con­tract by ex­pos­ing him to haz­ardous sub­stances in­clud­ing heavy met­als and toxic gases, the ap­peal said.

MacDon­ald said the ref­er­ence to gases arise from ev­i­dence heard dur­ing the trial that an un­capped sewer vent pipe was found in­side the wall in Mac­In­tyre’s of­fice at the hospi­tal.

MacLel­lan also erred by plac­ing the bur­den of proof on Mac­In­tyre to prove the haz­ardous ma­te­ri­als were present in the hospi­tal while the ren­o­va­tions were go­ing on, when the Oc­cu­pa­tional Health and Safety Act re­quires the health au­thor­ity to de­ter­mine what haz­ardous ma­te­ri­als were present be­fore start­ing the ren­o­va­tions, the ap­peal claimed.

Lawyers for Mac­In­tyre also say the Supreme Court jus­tice was wrong to ac­cept a doc­tor’s opin­ion that Mac­In­tyre was al­ways able to prac­tise as an oral sur­geon and didn’t suf­fer from heavy metal tox­i­c­ity while at the same time rul­ing that he was cor­rect to de­cide to cease prac­tis­ing in 2003 and that he couldn’t re­sume work un­til 2012.

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